Faulkner v. Allstate Ins. Co.

• Decision Date: 04 January 1979
• Docket Number: No. 49978,49978
• Citation: 367 So.2d 214
• Parties: Paul B. FAULKNER et ux., Petitioners, v. ALLSTATE INSURANCE CO. et al., Respondents.
• Court: Florida Supreme Court

Page 214

367 So.2d 214

Paul B. FAULKNER et ux., Petitioners, v. ALLSTATE INSURANCE CO. et al., Respondents.

No. 49978.

Supreme Court of Florida.

Jan. 4, 1979.

Rehearing Denied Feb. 28, 1979.

Bill Wagner and Michael Foster of Wagner, Cunningham, Vaughan & Genders, Tampa, for petitioners.

Edward M. Waller, Jr. of Fowler, White, Gillen, Boggs, Villareal & Banker, Tampa, for respondents.

HATCHETT, Justice.

In this case we are called upon to determine whether failure to meet the threshold requirements of the Florida Automobile Reparations Reform Act, hereinafter referred to as the "no-fault" insurance act, (1) deprives an injured person of his right to be compensated for property damages, (2) deprives the injured person's spouse of his or her claim for loss of consortium, and (3) bars further litigation on the matter. The Second District Court of Appeal answered these questions in the affirmative. Faulkner v. Allstate Insurance Co., 333 So.2d 488 (Fla. 2nd DCA 1976). ¹ While we agree that a claim for loss of consortium, being derivative in nature, is barred by the injured spouse's failure to reach the no-fault threshold, and that failure to reach the threshold bars further litigation on the matter, we do not agree that recovery of property damages is, in any way, dependent on the statutory requirements of the "no-fault" insurance act.

Petitioner, Paul B. Faulkner, instituted a suit to recover damages for personal injury and property damage arising out of an automobile accident, Petitioner's wife joined in the suit bringing a claim for loss of consortium. At the end of the testimony, petitioners were granted a directed verdict on the issue of liability and the case was submitted to the jury on the question of damages. Over petitioner's objection, the court instructed the jury that if the "threshold" provisions of the Florida Automobile Reparations Reform Act had not been met then the jury was to return a verdict in favor of the defendants on all claims and need not reach the damages issue. ² By special verdict the jury found that the threshold requirements had not been met. Motion for new trial was denied and final judgment was entered in favor of the defendants. On appeal, the Second District Court affirmed. Faulkner v. Allstate Insurance Co., supra.

Petitioners argue that in its decision below, the Second District Court of Appeal necessarily held that petitioners' failure to meet the threshold requirements deprived them of their right to recover all damages, including property damages and damages for loss of consortium. Such an interpretation of Florida's no-fault law is contra to the plain language of the statute. Section 627.737, Florida Statutes (1975) ³ provides tort exemption for damages due to "bodily injury, sickness, or disease arising out of the ownership, operation, maintenance, or use" of a motor vehicle Only to the extent that the benefits described in Section 627.736 ⁴ (reasonable medical expenses and lost earnings) are payable. Damages for pain, suffering, mental anguish, and inconvenience, are recoverable once a certain threshold is exceeded. The right to property damages exists regardless of the threshold requirements. This Court so held in Kluger v. White, 281 So.2d 1 (Fla.1973). The Legislature's attempt to abolish the common law right of action for property damages was there held unconstitutional and those provisions of the no-fault law abolishing that right were stricken. The constitutional guaranty of a "redress of any injury" (Article I, Section 21, Florida Constitution) bars the statutory abolition of an existing remedy without providing an alternative protection to the injured party.

Respondents agree that failure to meet the no-fault threshold does not deprive a claimant of his right to be compensated for property damage. It is their position, however, that the trial judge did not instruct the jury otherwise. In his original instruction the trial judge failed to instruct the jury as to property damages. This fact was brought to his attention after the jury had retired and the jury was returned to the courtroom and instructed as follows:

Pardon the interruption, ladies and gentlemen, but counsel pointed out the court did neglect to instruct you concerning property damage.

I charge you that if you find there is any proof of damage to the defendant's property, you may consider this instruction in evaluating his damages. Any damage to the plaintiff's automobile or other property, personal property. The measure of such damages is the difference between the value of the property, I believe, before the incident complained of, and the value immediately thereafter.

If you find there is any proof of property damage, you may use that to arrive at damages.

Respondents contend that the jury did not award any property damages because they found no proof of such damages, not because they were improperly instructed.

Considering the instruction regarding property damage together with the instruction regarding threshold requirements, a reasonable juror might well have believed that if the threshold requirements were not met, no damages were recoverable, even those for property loss. We therefore find that the combination of instructions given was, at the very least, confusing, probably misleading, and constituted reversible error.

Respondents also argue that, contra to the decision of the Second District Court of Appeal, a husband's or wife's claim for loss of consortium cannot be barred by failure of his or her spouse to meet the no-fault threshold, especially where a directed verdict on the issue of liability has been entered in favor of the claimant. Citing Kluger, supra, petitioners argue that the Legislature cannot constitutionally abolish the right of access to the courts without providing a reasonable alternative.

Mrs. Faulkner's claim for loss of consortium is derivative in nature and wholly dependent on her husband's ability to recover. Gates v. Foley, 247 So.2d 40 (Fla.1971). Since Mr. Faulkner's claim is barred by his failure to meet the no-fault threshold (except as provided herein) his wife's claim is likewise barred. The Third District Court of Appeal so held in Marquez v. Maderos, supra. In that case a father's derivative claim for the loss of services of his injured minor child was barred because the minor child failed to meet the no-fault threshold. The "access to the courts" argument which prevailed in Kluger is not applicable since the spouse's claim is not abolished. It is merely limited, for reasons of sound public policy, to cases in which the injured spouse has met the threshold requirements. As reasoned by the Second District Court of Appeal in its decision below:

In the case of a Husband seeking loss of consortium, other compensable damages such as medical expenses of the wife (which are his obligation to begin with) are recoverable under the no-fault provisions, and his wife, if working, may recover considerable loss of earnings all of which inure to the direct as well as indirect benefit of the husband seeking the loss of consortium. He thus has reasonable "substituted" court access, or, to put it another way, reasonable alternative relief. Lasky v. State Farm Insurance Co., (Fla.1974), 296 So.2d 9. It would seem, too, that his loss of pure "consortium," now a nebulous intangible in the first place, would be presumptively De minimis in almost all cases in which the injured party did not reach the threshold, the personal injuries being presumably minor. Lasky, supra. By a parity of reasoning, save for the no-fault recovery of medical expenses, a Wife...